Carbonell v. Tyson Fresh Meats Inc et al

Filing 30

ORDER Granting 20 Defendants' Motion to Dismiss. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Oct 16, 2018
SEAN F. MCAVOY, CLERK

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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CANDIDO CARBONELL,
NO: 4:18-CV-5054-RMP
Plaintiff,

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v.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

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TYSON FRESH MEATS, INC., a for
profit corporation; DAVID TOBIAS,
and his community property; and
TEODORO MARISCAL, and his
community property,

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Defendants.

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BEFORE THE COURT is a Motion to Dismiss for Failure to State a Claim

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filed by Defendants Tyson Fresh Meats, Inc. and David Tobias (collectively,

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“Defendants”). ECF No. 20. Plaintiff Candido Carbonell seeks relief under the

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Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act

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(“ADA”), the Washington Family Leave Act (“WFLA”), and the Washington Law

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Against Discrimination (“WLAD”), as well as state tort claims of Intentional

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Infliction of Emotional Distress, Negligent Infliction of Emotional Distress,
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 1

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Negligent Hiring, Battery, Assault, and Intentional Infliction of Physical Injury and

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Aggravation. See ECF No. 17. The Court has considered the parties’ arguments,

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has reviewed the pleadings and the record, and is fully informed.

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BACKGROUND
In July of 2010, Mr. Carbonell began working for Tyson as a laborer. ECF

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No. 17 at 2. Mr. Carbonell is of Cuban descent. Id. In June of 2015, Mr. Carbonell

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suffered an injury at work that required surgery, physical therapy, and medication

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for his shoulder, back, and neck. Id. at 3. Because of this injury, Mr. Carbonell’s

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physicians recommended that he perform light duty work with little physical strain

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as he recovered. Id. Tyson initially approved Mr. Carbonell’s light duty work

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request. Id.

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According to Mr. Carbonell, Defendants did not always keep its light duty

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promises. Plaintiff alleges that on one occasion Defendants assigned Mr. Carbonell

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to a project that required him to lift fifty to sixty pound boxes and also threatened

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him with his job if he refused to do the work. ECF No. 17 at 4. Plaintiff also alleges

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that on another occasion Teodoro Mariscal, Mr. Carbonell’s supervisor, demanded

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that Mr. Carbonell lift heavy pieces of meat from the floor weighing over thirty

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pounds, and physically shoved Mr. Carbonell when he said that the work was

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outside of his restrictions. Id. at 4–5. Mr. Carbonell alleges that this verbal and

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physical abuse for performing light duty work continued throughout the next several

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 2

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years, resulting in Mr. Carbonell’s fainting, trips to the emergency room, and a

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second shoulder surgery after the injury was aggravated. Id. at 4–10.

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After the second shoulder surgery, Mr. Carbonell took medical leave. ECF

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No. 17 at 9. When he returned from that leave, he requested to remain on light duty

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work, as his doctors recommended. Id. at 9–10. Mr. Carbonell alleges that this time

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Defendants did not accommodate his requested work restrictions. Id. at 10. Mr.

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Carbonell states that he is still going through treatment for his physical injuries

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suffered at, and aggravated by, his employment with Tyson and the conduct of the

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other Defendants. Id.

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Plaintiff also alleges that Mr. Carbonell’s coworkers and supervisors would

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harass Mr. Carbonell for his Cuban heritage and descent. ECF No. 17 at 9. He

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claims that they would call him racial slurs, including “blackie” and “pinche negro.”

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Id. He states that his coworkers and supervisors would ask Mr. Carbonell how he

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got into the country. Id. Additionally, he alleges they would declare “long live

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Fidel Castro and the revolution.” Id.

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Mr. Carbonell alleges that he would complain to Mr. Tobias, his manager,

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about Mr. Mariscal’s and others’ behavior. ECF No. 17 at 4–10. Plaintiff alleges

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that instead of working to end or prevent the harassment, Mr. Tobias would join in

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on the discrimination by asking about Mr. Carbonell’s immigration status and

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making negative comments about his Cuban heritage and dark-colored skin. Id. at 8.

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Additionally, Plaintiff claims that Tyson’s Human Resources department failed to
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 3

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address the harassment when Mr. Carbonell brought it to the department’s attention.

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Id. at 5–6. Mr. Carbonell claims that he requested a hearing to discuss and prove his

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complaints, but that Tyson denied that request. Id. at 6. Plaintiff alleges that

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Defendants eventually suspended Mr. Carbonell for a full day of work for

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complaining about the harassment and discrimination. Id. at 8.

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Mr. Carbonell filed a complaint against Defendants and other coworkers,

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alleging claims under the ADA, WLAD, FMLA, WFLA, and Washington state tort

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law. ECF No. 1. Mr. Carbonell filed his First Amended Complaint thereafter,

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removing his coworkers as defendants and leaving Tyson, Mr. Tobias, and Mr.

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Mariscal as Defendants. ECF No. 17. He also alleged additional Washington state

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tort claims. Id.

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Defendants filed the instant Motion to Dismiss the First Amended Complaint

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for Failure to State a Claim. ECF No. 20. The Court has considered Mr.

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Carbonell’s response, ECF No. 23, and Defendants’ reply. ECF No. 24.

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LEGAL STANDARD

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A plaintiff’s claim will be dismissed if it fails to state a claim upon which

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relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss

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under Rule 12(b)(6), the plaintiff must plead “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007). A claim is plausible when the plaintiff pleads “factual content that allows

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 4

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the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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In ruling on a Rule 12(b)(6) motion to dismiss, a court “accept[s] factual

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allegations in the complaint as true and construe[s] the pleadings in the light most

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favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co.,

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519 F.3d 1025, 1031 (9th Cir. 2008). A court is not required, however, to “assume

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the truth of legal conclusions merely because they are cast in the form of factual

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allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)

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(internal quotation omitted). “[C]onclusory allegations of law and unwarranted

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inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355

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F.3d 1179, 1183 (9th Cir. 2004).

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DISCUSSION
Claims Under FMLA and WFLA
The Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.,

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allows employees of qualified employers to take “reasonable leave for medical

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reasons.” 29 U.S.C. § 2601(b)(2). It entitles employees to take a total of 12

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workweeks of leave per year for certain medical reasons, including “a serious health

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condition that makes the employee unable to perform the functions of the position of

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such employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA also authorizes the

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Department of Labor (“DOL”) to implement guiding regulations. 29 U.S.C. § 2654.

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 5

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To protect an employee’s right to take medical leave, the FMLA prohibits

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certain acts by an employer that would prevent or discourage an employee from

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taking FMLA leave. 29 U.S.C. § 2615(a). First, the FMLA prohibits an employer’s

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interference with an employee’s attempt to exercise FMLA rights to which the

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employee is entitled. 29 U.S.C. § 2615(a)(1). When a plaintiff accuses an employer

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of violating section 2615(a)(1), it is known as an interference claim. Sanders v. City

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of Newport, 657 F.3d 772, 777 (9th Cir. 2011). Second, an employer cannot

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discharge or discriminate against an employee for exercising his FMLA rights. 29

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U.S.C. § 2615(a)(2). A plaintiff’s claim under section 2615(a)(2) is known as a

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retaliation claim. Sanders, 657 F.3d at 777.
Mr. Carbonell alleges both interference and retaliation claims under the
FMLA in his First Amended Complaint. ECF No. 17 at 13.

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A. Interference Claim

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Mr. Carbonell’s first FMLA claim against Defendants is an interference claim.

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ECF No. 17 at 13–14. He argues that Defendants failed to provide him with written

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notice of his eligibility for leave and benefits, prevented him from taking the leave

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for which he was eligible, and failed to return him to the same or similar position on

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return from leave. Id. Defendants argue that Mr. Carbonell received medical leave,

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and, therefore, his interference claim fails. ECF No. 20 at 9.

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A plaintiff claiming FMLA interference meets his prima facie case by

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establishing five elements: (1) he was eligible for the FMLA’s protections; (2) his
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 6

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employer was covered by the FMLA; (3) he was entitled to FMLA leave; (4) he

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provided sufficient notice of his intent to take leave; and (5) his employer denied

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him the FMLA benefits to which he was entitled. Sanders, 657 F.3d at 778.

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As to the first element, the DOL’s regulations define an eligible employee as

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an employee who (1) has been employed by the employer for at least 12 months; (2)

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has worked 1250 hours during the 12-month period immediately preceding the

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leave; and (3) is employed at a worksite with 50 or more employees of the employer

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working within 75 miles of the worksite. 29 C.F.R. § 825.110(a); see also 29 U.S.C.

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§ 2611(2)(A).

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In his First Amended Complaint, Mr. Carbonell alleges that he began working

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for Defendants in July of 2010. ECF No. 17 at 2. He suffered his injury in June of

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2015 and took leave in March of 2017. Id. at 3 & 10. Mr. Carbonell has alleged

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that he worked more than one year with Defendants by 2015 and by his second

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injury in 2017. Further, Mr. Carbonell alleges that he worked at least 1,250 hours in

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any given year, and that the Defendants’ worksite employed over 50 employees

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within a 75 mile radius. Id. at 11. Taking the factual allegations in the complaint as

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true, Mr. Carbonell has alleged sufficient facts to support the first element of his

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FMLA interference claim.

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The second element of an interference claim requires the Plaintiff to allege

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that his employer is covered by the FMLA. Sanders, 675 F.3d at 778. “An

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employer covered by the FMLA is any person engaged in commerce or in any
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 7

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industry or activity affecting commerce, who employs 50 or more employees for

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each working day during each of 20 or more calendar workweeks in the current or

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preceding calendar year.” 29 C.F.R. § 825.104(a); accord 29 U.S.C. § 2611(4)(A).

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Mr. Carbonell alleges that Defendant Tyson is an employer that is engaged in

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commerce and the dealing of goods in commerce. ECF No. 17 at 11. Further, he

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alleges that Tyson employs more than 50 employees. Id. However, Mr. Carbonell

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has failed to allege whether 50 or more employees work 20 or more calendar

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workweeks a year. While he states that he is a full-time employee, it is unclear

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whether these other employees were full-time or seasonal. Id. at 2. Therefore, Mr.

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Carbonell has failed to allege facts sufficient to meet the second element of his

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FMLA interference claim.

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The third element of an interference claim requires a plaintiff to establish that

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he was entitled to FMLA leave or benefits. Sanders, 675 F.3d at 778. The FMLA

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provides that an employee is entitled to leave when “a serious health condition”

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renders the employee “unable to perform the functions of the position of such

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employee.” 29 U.S.C. § 2612(a)(1)(D). The term “serious health condition” under

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the FMLA means “an illness, injury, impairment, or physical or mental condition

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that involves (A) inpatient care in a hospital, hospice, or residential medical care

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facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. 2611(11).

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The first prong, inpatient care, refers to “an oversight stay in a hospital, hospice, or

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residential medical care facility, including any period of incapacity.” 29 C.F.R. §
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 8

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825.114. Incapacity is defined as “inability to work . . . due to the serious health

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condition, treatment therefore, or recovery therefrom.” 29 C.F.R. § 825.113(b). The

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second prong of serious medical injury, continuing treatment, is defined as a period

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of incapacity of more than three consecutive full calendar days or conditions

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requiring multiple treatments, including restorative surgery after an injury. 29

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C.F.R. § 825.115.

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Mr. Carbonell alleges that he suffered a work place injury on June 18, 2015.

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ECF No. 17 at 3. He claims that this injury required surgery, physical therapy, and

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medication for his shoulder, back, and neck. Id. He also claims to have re-injured

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himself while working on May 18, 2016, which required a visit to the emergency

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room. Id. at 7. Additionally, Mr. Carbonell states that he received another shoulder

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surgery in March 2017. Id. at 8. After this second shoulder surgery, Mr. Carbonell

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alleges that his doctors ordered him to take leave due to an inability to work. Id. at

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9. He claims that he is still undergoing treatment for his physical injuries that he

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suffered while working for Defendants. Id. at 10.

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Taking Mr. Carbonell’s allegations as true for purposes of this motion, he

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required two separate surgeries that prevented him from performing the duties of his

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position. ECF No. 17 at 3 & 8. Further, Mr. Carbonell was subjected to continuing

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treatment, as he had multiple restorative surgeries due to injuries received and

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aggravated while on the job. Id. As alleged, Mr. Carbonell’s injury is a serious

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medical injury under the FMLA, entitling him to FMLA leave. Therefore, Mr.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 9

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Carbonell has alleged sufficient facts to establish the third element of an FMLA

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interference claim.

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The fourth element of an interference claim is that the plaintiff provided the

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employer with sufficient notice of his intent to take leave. Sanders, 675 F.3d at 778.

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If the leave is foreseeable, the employee “shall provide the employer with not less

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than 30 days’ notice, . . . except that if the date of the treatment requires leave to

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begin in less than 30 days, the employee shall provide such notice as is practicable.”

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29 U.S.C. § 2612(e)(2)(B).

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Mr. Carbonell’s First Amended Complaint does not mention any specific

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instances in which he put Defendants on notice of his intent to take leave under the

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FMLA. Mr. Carbonell alleges that “[e]ach time that Plaintiff put Defendant Tyson

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on notice that he had a serious health condition that could have been subject

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protected leave [sic], Defendant Tyson failed inquire [sic] about the condition and

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failed to provide Plaintiff with written notice of his eligibility” for medical leave.

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ECF No. 17 at 9. Additionally, it appears that Mr. Carbonell did take some form of

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leave in March of 2017, but Mr. Carbonell does not state whether he gave his

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employer notice of his intent to take FMLA leave. Id. There are no other

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allegations regarding notice in the First Amended Complaint. Mr. Carbonell has

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failed to allege a plausible claim for interference with FMLA leave because he has

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not alleged that he gave Defendants sufficient notice of his intent to take leave.

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 10

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The fifth element of an interference claim is that the employer denies the

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plaintiff FMLA benefits to which he is entitled. Sanders, 675 F.3d at 778. A main

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benefit provided by the FMLA is the right to take medical leave to care for one’s

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own injuries. 29 U.S.C. § 2612(a). An employer interferes with an employee’s right

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to take this medical leave if the employer characterizes FMLA-qualifying leave as

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personal leave. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1134–35 (9th Cir.

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2003).

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Additionally, an employer may interfere with an employee’s FMLA rights
when the employee notifies the employer of his intent to take leave that may be

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FMLA-qualifying, but the employer fails to inquire further to determine the

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employee’s FMLA eligibility. 29 C.F.R. § 825.301. If the leave is FMLA-

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qualifying, the employer must notify the employee of his eligibility within five

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business days of being given notice by the employee. 29 C.F.R. § 825.300(b)(1).

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The notice must be in writing and must detail the specific expectations and

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obligations of the employee in taking and completing FMLA leave. 29 C.F.R. §

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825.300(c)(1). An employer’s failure to follow these notice procedures may

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constitute an interference with the employee’s FMLA rights. 29 C.F.R. §

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825.301(e). However, if an employee does take leave, the employee cannot make an

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FMLA interference claim with the employer’s failure to give notice, unless the

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employer’s actions interfered with the employee’s ability to take leave. See Jackson

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v. Simon Prop. Group, Inc., 795 F. Supp. 2d 949, 965 (N.D. Cal. 2011). The DOL’s
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 11

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regulations explain how an employer’s failure to notify an employee of his FMLA

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rights might constitute an interference of the employee’s rights:

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For example, if an employer that was put on notice that an employee
needed FMLA leave failed to designate the leave properly, but the
employee’s own serious health condition prevented him or her from
returning to work during that time period regardless of the designation,
an employee may not be able to show that the employee suffered harm
as a result of the employer’s actions. However, if an employee took
leave to provide care for a son or daughter with a serious health
condition believing it would not count toward his or her FMLA
entitlement, and the employee planned to later use that FMLA leave to
provide care for a spouse who would need assistance when recovering
from surgery planned for a later date, the employee may be able to show
that harm has occurred as a result of the employer’s failure to designate
properly. The employee might establish this by showing that he or she
would have arranged for an alternative caregiver for the seriously ill
son or daughter if the leave had been designated timely.
29 C.F.R. § 825.301(e).
Mr. Carbonell argues in his response to Defendants’ Motion to Dismiss that

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mischaracterizing FMLA leave as personal leave violates the FMLA. ECF No. 23 at

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4. It appears Mr. Carbonell did take leave following his second shoulder surgery.

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See ECF No. 17 at 9 (claiming that Mr. Carbonell’s physicians ordered him to take

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leave, and then return to work two months later with work restrictions). The

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complaint does not say whether Tyson designated the leave as personal, medical, or

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some other kind of leave. Without this information, the complaint does not allege

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that Tyson interfered with Mr. Carbonell’s leave by classifying it as personal rather

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than medical. Thus, Mr. Carbonell fails to establish the fifth element of an FMLA

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interference claim.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 12

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Mr. Carbonell also claims that Defendants failed to inquire about his medical

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issues and leaves of absence to determine whether his leave was FMLA-qualifying.

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ECF No. 17 at 9. However, there is no further mention of Defendants’ lack of

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inquiry outside of one conclusory paragraph in Mr. Carbonell’s complaint. Id. Mr.

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Carbonell fails to allege how Defendants’ failure to inquire about Mr. Carbonell’s

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leave or failure to give notice about his FMLA rights affected his ability to take

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leave. In fact, Mr. Carbonell alleges that he did take leave after his second shoulder

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surgery. Id.

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Mr. Carbonell’s claim is similar to the plaintiff’s claim in Jackson. In

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Jackson, an employee argued that an employer’s failure to give him notice that the

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FMLA entitled him to only 12 weeks of leave, after the employee already had taken

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the leave, constituted FMLA interference. Jackson, F. Supp. 2d at 965. However,

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as the district court in that case noted, the FMLA prohibits an employer’s

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interference with an employee’s “exercise” of his FMLA rights. Id.; see also 29

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U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere with,

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restrain, or deny the exercise of or the attempt to exercise, any right provided under

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this subchapter.”). An employer’s responsibility to give certain FMLA notice under

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29 C.F.R. § 825.301(b) and similar provisions are not rights that an employee

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“exercises.” Jackson, F. Supp. 2d at 965; see also 29 C.F.R. § 825.301(e).

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Therefore, absent some allegations that the failure to give notice tangibly affected an

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 13

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employee’s ability to exercise an FMLA right, failure to give notice, on its own,

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does not constitute an interference with an FMLA right. Id.

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Here, Mr. Carbonell did take some sort of leave after his second shoulder

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surgery. ECF No. 17 at 9. While he alleges that Defendants’ failure to give him

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notice about his FMLA rights or failure to inquire about his injury interfered with his

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FMLA rights, Mr. Carbonell fails to allege a connection between Defendants’

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actions and the rights with which Defendants allegedly interfered. Without alleging

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the nexus between Defendants’ actions and interference with Mr. Carbonell’s ability

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to take medical leave, Plaintiff has failed to allege sufficient facts to support an

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interference claim. Thus, Mr. Carbonell’s First Amended Complaint fails to

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establish the fifth element of an FMLA interference claim because it fails to allege

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any actions by the Defendants that denied him FMLA benefits to which he was

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entitled.

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Therefore, the Court finds that Mr. Carbonell’s First Amended Complaint fails
to state a claim for FMLA interference.

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B. Retaliation Claim

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Mr. Carbonell also alleges an FMLA retaliation claim. ECF No. 17 at 13. He

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claims that Defendants retaliated against him for taking his medical leave. Id.

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Defendants argue that Mr. Carbonell’s assertions in the First Amended Complaint

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lack legal sufficiency to state a retaliation claim. ECF No. 20 at 9–10.

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 14

A plaintiff establishes a prima facie case 1 for FMLA retaliation by alleging

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that (1) the plaintiff availed himself of a protected FMLA right; (2) the plaintiff was

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affected by an adverse employment decision; and (3) there is a causal connection

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between the two actions. Crawford v. JP Morgan Chase NA, 983 F. Supp. 2d 1264,

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1269 (W.D. Wash. 2013).

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The first element of an FMLA retaliation claim is that the plaintiff availed

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himself of a protected FMLA right. Crawford, 983 F. Supp. 2d at 1269. In his

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response to Defendants’ Motion to Dismiss, Mr. Carbonell claims that he engaged in

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protected activity under the FMLA by requesting leave and light duty work

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following his first shoulder surgery in June of 2015. ECF No. 23 at 6–7. But Mr.

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Carbonell does not allege that he requested leave following the first surgery in his

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First Amended Complaint. See ECF No. 17 at 2–4. However, Mr. Carbonell does

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allege that he requested, and took, leave following his second shoulder surgery in

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March of 2017. Id. at 9. It is unclear from his allegations whether his 2017 leave

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was FMLA leave. However, because Mr. Carbonell alleged that he was FMLA

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eligible, and because Mr. Carbonell took the leave immediately following shoulder

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The Ninth Circuit held in Sanders that the McDonnell Douglas burden-shifting
framework applies to FMLA retaliation claims. See Sanders, 657 F.3d at 777;
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, the
McDonnell Douglas framework does not apply at the pleading stage. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). Therefore, Mr. Carbonell
only needs to allege sufficient facts to support a plausible claim for relief..

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 15

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surgery, the Court concludes that Mr. Carbonell likely was on FMLA leave. By

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taking FMLA leave, Mr. Carbonell has availed himself of a protected FMLA right.

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See 29 U.S.C. 2612(a). Therefore, Mr. Carbonell arguably has alleged facts

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supporting the first element of an FMLA retaliation claim.

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The second element of an FMLA retaliation claim is that the plaintiff was

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affected by an adverse employment action. Crawford, 983 F. Supp. 2d at 1269. An

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adverse employment action is an action that a reasonable employee would have

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found materially adverse. Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53,

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68 (2006).2 Terminating an employee’s employment “plainly qualifies as an adverse

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employment action.” Lakeside-Scott v. Multnomah Cty., 556 F.3d 797, 803 (9th Cir.

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2009). If an employee resigns on his own accord, it can still be considered

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termination under a theory of constructive termination. Schindrig v. Columbia

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Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996). An employer constructively

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terminates an employee if a reasonable person in the employee’s position would

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have felt that he was forced to quit due to intolerable working conditions. Id. To

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allege a constructive discharge, an employee must allege several aggravating factors

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motivating the resignation, resulting in a continuous pattern of discriminatory

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treatment. Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990).

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While this definition of adverse employment action was originally applied to
Title VII employment actions, several courts have found this definition applies in
FMLA retaliation claims as well. See, e.g., Wierman v. Casey’s Gen. Stores, 638
F.3d 984, 999 (8th Cir. 2011).
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 16

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Constructive termination questions are normally questions of fact reserved for

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juries, but in some instances courts have decided constructive termination issues as a

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matter of law. The Ninth Circuit held that an employee was not constructively

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terminated even when the employee was replaced as head of the company, forced to

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move into a smaller office, and banned from executive lunch meetings. Schnidrig,

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80 F.3d at 1411–12. Despite the alleged aggravating factors, the Ninth Circuit found

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that the employee was not constructively discharged because he “was not demoted,

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did not receive a cut in pay, was not encouraged to retire, and was not disciplined.”

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Id. at 1412. In another case, the Ninth Circuit found no constructive discharge when

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the plaintiff failed to allege any aggravating factors leading to the resignation, which

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could include being required to perform unusually dangerous or onerous duties,

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subjection to harassment or violent acts, or other disciplinary conduct. Thomas v.

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Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989).

14

Following his leave after his second shoulder surgery in 2017, Mr. Carbonell

15

alleges that Defendants failed to accommodate his medical restrictions, even though

16

they had the resources to do so. ECF No. 17 at 10. Further, he claims that

17

Defendants failed to participate in a good faith discussion with him and his

18

physicians about his medical restrictions. Id. Last, he claims that Tyson granted

19

light duty accommodations to employees of other races and skin color, but not to

20

Mr. Carbonell, a man of Cuban descent with brown skin color. Id. With these

21
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 17

1

actions, Mr. Carbonell alleges that Defendants constructively terminated him. ECF

2

No. 23 at 7.

3

Mr. Carbonell has not presented enough facts to establish that he was

4

constructively terminated from his position with Tyson due to Defendants’ conduct

5

related to his FMLA leave. Mr. Carbonell’s allegations of retaliation come from

6

Defendants’ alleged refusal to accommodate his medical restrictions, despite their

7

willingness to work with the restrictions of other employees. ECF No. 17 at 10.

8

There are no specific factual allegations that, following Mr. Carbonell’s leave in

9

March to May of 2017, Defendants harassed him because of his FMLA leave, were

10

violent towards him because of his FMLA leave, or otherwise made his working

11

conditions, to a reasonable person, intolerable because of his FMLA leave.

12

Schnidrig, 80 F.3d at 1411–12. Mr. Carbonell argues that Defendants took

13

materially adverse actions by requiring him to lift heavy boxes and verbally and

14

physically harassing him and intimidating him. ECF No. 23 at 7. However, these

15

allegations all occurred before Mr. Carbonell took his medical leave and there is no

16

connection alleged between his FMLA leave and Defendants’ activities. See ECF

17

No. 17 at 4–9 (allegations of harassment); 9–10 (allegations of medical leave).

18

Because these alleged actions occurred before Mr. Carbonell took FMLA leave, the

19

actions cannot be used to support a prima facie case of FMLA retaliation.

20
21

Mr. Carbonell does not allege that Defendants demoted him, gave him a pay
cut, encouraged him to quit, or otherwise disciplined him because of his medical
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 18

1

leave. Schnidrig, 80 F.3d at 1412. Following Mr. Carbonell’s return from leave,

2

Plaintiff does not allege that Defendants subjected Mr. Carbonell to onerous or

3

dangerous tasks or harassment or violent acts. Thomas, 877 F.2d at 1434. Because

4

the harassment allegedly occurred before Mr. Carbonell returned from medical

5

leave, the Court cannot plausibly find that the Defendants constructively terminated

6

him with harassment and discrimination as retaliation for exercising FMLA leave.

7

Mr. Carbonell also argues that Defendants retaliated against him by denying

8

him employment when he returned from leave. ECF No. 23 at 7. However, Mr.

9

Carbonell’s complaint fails to allege that Defendants denied him employment upon

10

returning from leave; rather, it alleges that he was denied accommodations for his

11

medical restrictions upon returning from leave. ECF No. 17 at 9–11. Even then,

12

Mr. Carbonell’s medical restriction claims are wholly conclusory. Mr. Carbonell

13

has not sufficiently established how Defendants’ actions were retaliations against

14

him for exercising FMLA leave.

15

Mr. Carbonell also alleges that Defendants retaliated against him by denying

16

him his medical restrictions when he returned from leave for his second shoulder

17

surgery. ECF No. 17 at 10; ECF No. 23 at 6–7. However, a failure to accommodate

18

requested medical restrictions with light duty work is not governed by the FMLA, as

19

the FMLA does not require employers to offer light duty work to employees with

20

serious health conditions. See 29 C.F.R. § 825.220(d) (stating that employers may

21

offer light duty assignments to employees with serious health conditions, but
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 19

1

acceptance of a light duty position does not constitute a waiver of the employees’

2

FMLA rights). “There is no such thing as ‘FMLA light duty.’” Hendricks v.

3

Compass Group, USA, Inc., 496 F.3d 803, 805 (7th Cir. 2007). Thus, Defendants’

4

alleged failure to accommodate Mr. Carbonell’s medical restrictions does not

5

establish an FMLA retaliation claim.

6

Mr. Carbonell has not alleged sufficient facts to support that he was subjected

7

to adverse employment action following his decision to take FMLA leave in 2017.

8

For this reason, Mr. Carbonell has failed to state an FMLA retaliation claim upon

9

which relief may be granted.

10
11

Abandoned Claims
In his First Amended Complaint, Mr. Carbonell also asserted a claim under

12

the Americans with Disabilities Act (“ADA”), as well as state law tort claims of

13

intentional infliction of emotional distress, negligent infliction of emotional distress,

14

negligent hiring, battery, and assault. ECF No. 17 at 13–15. In response to

15

Defendants’ Motion to Dismiss, Mr. Carbonell voluntarily dismissed these claims.

16

ECF No. 23 at 2. Accordingly, the Court dismisses these claims.

17

Remaining State Law Claims

18

Mr. Carbonell asserted both federal and state law claims in his First Amended

19

Complaint. See ECF No. 17. As discussed supra, the Court finds that Mr.

20

Carbonell’s FMLA claims fail to state a claim upon which relief may be granted.

21

Fed. R. Civ. P. 12(b)(6). Mr. Carbonell voluntarily dismissed his ADA claims. ECF
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 20

1

No. 23 at 2. FMLA and ADA were the only federal claims in his First Amended

2

Complaint, which supported federal court jurisdiction. 28 U.S.C. § 1331. Mr.

3

Carbonell’s remaining claims against the Defendants are state law claims under the

4

Washington Family Leave Act, the Washington Law Against Discrimination, and a

5

claim of Intentional Infliction of Physical Injury and Aggravation.

6

A district court has supplemental jurisdiction over claims that “form part of

7

the same case or controversy” of claims over which a district court has original

8

jurisdiction. 28 U.S.C. § 1367(a). However, if a district court dismisses all claims

9

over which it has original jurisdiction, the court “may decline to exercise

10

supplemental jurisdiction” over the remaining claims. 28 U.S.C. § 1367(c)(3). If all

11

original jurisdiction claims are dismissed before trial, it is common practice to

12

decline to exercise jurisdiction over any remaining state law claims. See Acri v.

13

Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997).

14

The Court had original jurisdiction over Mr. Carbonell’s federal claims under

15

federal question jurisdiction. See 28 U.S.C. § 1331. However, with his federal

16

claims dismissed, there is no basis for federal question jurisdiction. Further, the

17

Plaintiff has not alleged a basis for the Court to assert diversity jurisdiction over Mr.

18

Carbonell’s remaining state law claims.

19

Because the Court no longer has original jurisdiction over any of Mr.

20

Carbonell’s claims, the Court declines to exercise supplemental jurisdiction over his

21

remaining state law claims. See 28 U.S.C. § 1367(c)(3); Acri, 114 F.3d at 1001.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 21

1

Therefore, Mr. Carbonell’s claims under the WFLA, WLAD, and Intentional

2

Infliction of Physical Injury and Aggravation are dismissed without prejudice for

3

lack of subject matter jurisdiction.

4

Accordingly, IT IS HEREBY ORDERED:

5

1.

6

for Failure to State a Claim, ECF No. 20, is GRANTED.

7

2.

8

and abandoned tort claims of Battery, Assault, Intentional Infliction of

9

Emotional Distress, Negative Infliction of Emotional Distress, and Negligent

Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint

Plaintiff’s abandoned claims under the Americans with Disabilities Act

10

Hiring are all DISMISSED WITHOUT PREJUDICE.

11

3.

12

Family Leave Act, Washington Law Against Discrimination, are

13

DISMISSED WITHOUT PREJUDICE with leave to amend. Because the

14

Court has lost federal question jurisdiction, Plaintiff’s remaining claims are

15

also DISMISSED WITHOUT PREJUDICE with leave to amend.

16

4.

17

hereby stricken.

18

IT IS SO ORDERED. The District Court Clerk is directed to enter this

19
20
21

Plaintiff’s claims under the Family and Medical Leave Act, Washington

Any pending motions are DENIED AS MOOT. Any hearing dates are

Order and provide copies to counsel, and close this case.
DATED October 16, 2018.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 22